Texas Code of Criminal Procedure 59.021 – Forfeiture of Substitute Property
(a) In this article, “substitute property” means property:
(1) that is not contraband; and
(2) that is owned by a person who is or was the owner of, or has or had an interest in, contraband with an aggregate value of $200,000 or more.
(b) Substitute property may be seized under authority of a search warrant issued under Subsection (c) if property that is contraband:
(1) can no longer be located after the exercise of reasonable diligence;
(2) has been transferred, conveyed, sold to, or deposited with a person other than the owner or interest holder;
(3) is not within the jurisdiction of the court;
(4) has substantially diminished in value;
(5) has been commingled with other property and cannot be readily distinguished or separated; or
(6) is proceeds described by Article 59.01(2)(C) and was used to acquire other property that is not within the jurisdiction of the court.
Terms Used In Texas Code of Criminal Procedure 59.021
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Person: includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity. See Texas Government Code 311.005
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Property: means real and personal property. See Texas Government Code 311.005
(c) A district court may issue a search warrant authorizing a peace officer to seize substitute property if the officer submits an affidavit that states:
(1) probable cause for the commission of an offense giving rise to forfeiture of contraband;
(2) a description of the contraband involved and the estimated current fair market value of the substitute property to be seized;
(3) the reasons the contraband is unavailable for forfeiture;
(4) probable cause to believe that the owner of the substitute property owned or had an interest in contraband with an aggregate value of $200,000 or more in connection with the commission of an underlying offense giving rise to the forfeiture; and
(5) that due diligence has been exercised in identifying the minimum amount of substitute property necessary to approximate the estimated highest fair market value of the contraband during the period in which the owner of the substitute property owned, or had an interest in, the contraband.
(d) After seizure of the substitute property, the disposition shall proceed as other cases in this chapter except that the attorney representing the state must prove by a preponderance of the evidence:
(1) that the contraband described by Subsection (b) was subject to seizure and forfeiture under this chapter;
(2) the highest fair market value of that contraband during the period in which the owner of the substitute property owned, or had an interest in, the contraband;
(3) the fair market value of the substitute property at the time it was seized; and
(4) that the owner of the substitute property owned or had an interest in contraband with an aggregate value of $200,000 or more in connection with the commission of an underlying offense giving rise to the forfeiture.
(e) For purposes of determining the aggregate value of contraband under Subsection (c) or (d), the owner or interest holder is not required to have simultaneously owned or had an interest in all of the property constituting contraband.
(f) If the fair market value of the substitute property seized exceeds the highest fair market value of the contraband described by Subsection (b) during the period in which the owner of the substitute property owned, or had an interest in, the contraband, the court shall make appropriate orders to ensure that property equal in value to the excess is returned to the person or persons from whom the substitute property was seized.